Florida Non-Compete Enforcement Under § 542.335

Step 1, The Legitimate Business Interest Test

Under § 542.335(1)(b), the party seeking enforcement must plead and prove a legitimate business interest supporting the restriction. The statute enumerates five non-exclusive categories:

1. 1. Trade secrets

   As defined by the Florida Uniform Trade Secrets Act (Ch. 688). The classic category, and the one with the broadest reach (no geographic limit required).

2. 2. Valuable confidential business or professional information

   Customer lists, pricing, margins, internal processes, and other information that doesn’t rise to trade-secret level but still has real competitive value.

3. 3. Substantial relationships with specific prospective or existing customers, patients, or clients

   The classic category for sales reps, account managers, and professionals whose book of business was developed on the employer’s dime.

4. 4. Customer, patient, or client goodwill

   Associated with a specific geographic location, trade name, or marketing area.

5. 5. Extraordinary or specialized training

   Training beyond what’s standard in the industry, paid for by the employer.

Florida courts have consistently refused to enforce non-competes that boil down to “we don’t want ordinary competition.” The statute makes clear that restraining naked competition, without more, is not a legitimate business interest.

Step 2, Reasonable Time, Geography, and Scope

Section 542.335(1)(d) creates statutory presumptions on duration:

• Former employees / agents / independent contractors: 6 months or less is presumed reasonable; more than 2 years is presumed unreasonable.
• Former distributors, dealers, franchisees, and licensees: 1 year or less presumed reasonable; more than 3 years presumed unreasonable.
• In connection with the sale of a business: 3 years or less presumed reasonable; more than 7 years presumed unreasonable.
• Trade-secret cases: 5 years or less presumed reasonable; more than 10 years presumed unreasonable.

Geography and scope must be tailored to the legitimate business interest, a sales rep who called on Broward and Miami-Dade shouldn’t be restrained from working anywhere in Florida. Courts take geographic overreach as a drafting signal and will often modify (not void) the covenant.

Step 3, The Modify-Not-Discard Rule

Under § 542.335(1)(c), if a covenant is overbroad or otherwise not reasonably necessary, the court shall modify it and grant only the relief reasonably necessary to protect the legitimate business interest. This is a two-edged rule. For plaintiffs, it means a flawed non-compete isn’t automatically fatal. For defendants, it means you can’t rely on “that restriction is way too broad” as a knockout defense, the court will blue-pencil it down to whatever slice actually survives.

Step 4, The Injunction

Non-compete enforcement is an injunction-driven practice. Under Fla. R. Civ. P. 1.610, and the four-part test Florida courts apply, the movant must show:

1. A substantial likelihood of success on the merits
2. Irreparable harm absent an injunction
3. The legal remedy (damages) is inadequate
4. The injunction serves the public interest

Section 542.335(1)(j) gives the movant a major head start on prong 2: violation of an enforceable restrictive covenant creates a presumption of irreparable injury. That statutory presumption is the single biggest reason non-compete plaintiffs prevail in Florida when the drafting holds up.

What the Statute Doesn’t Let Courts Consider

Section 542.335(1)(g) is a drafter-friendly feature: courts are expressly forbidden from considering several equities that would otherwise tilt against enforcement. They cannot consider (i) any hardship on the person being restrained, (ii) the party’s lack of negotiating power, or (iii) a policy against restraints on competition unless reduced to a statutory rule. Florida is intentionally out of step with most of the country here.

Paul Kogan

Fort Lauderdale Litigation Attorney, The Kogan Firm, P.A.

• 15+ years
• Florida Bar
• Martindale Peer Rated

This guide is for informational purposes only and does not constitute legal advice.